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Simpson v. Baskin

United States District Court, M.D. Tennessee, Nashville Division

February 26, 2018

JANET LEIGH SIMPSON, Plaintiff,
v.
ROGER SCOTT BASKIN and RANDALL BASKIN, Defendants.

          HONORABLE ALETA A. TRAUGER, DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          ALISTAIR E. NEWBERN UNITED STATES MAGISTRATE JUDGE

         This action has been referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1) for report and recommendation on all dispositive motions. (Doc. No. 4.) Now pending is a motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) by Defendants Roger Scott Baskin and Randall Baskin. (Doc. No. 6.) For the following reasons, the undersigned RECOMMENDS that the motion to dismiss be GRANTED and that this action be DISMISSED WITHOUT PREJUDICE to Plaintiff Janet Leigh Simpson filing an amended complaint.

         I. Background

         A. Simpson's Allegations

         Plaintiff Janet Leigh Simpson, proceeding pro se and in forma pauperis, filed this action under the Fair Labor Standards Act (FLSA)[1] on July 24, 2017, alleging that Defendants Roger Scott Baskin (RSB) and Randall Baskin (RB) collectively owe her $391, 000.00 in unpaid wages. (Doc. No. 1, PageID# 15.) Simpson's complaint states that, “[f]or almost 12 years [RSB] worked [her] 7 days a week without any monetary benefits, which included overtime most days for several businesses he owned.” (Id. at PageID# 15-16.) Simpson claims that “[RSB] never paid [her] a wage and . . . stated that it wasn't his responsibility to provide [her] with a wage.” (Id. at PageID# 15.) Simpson asks the Court to “order [RSB] to pay [her] the back wages owed of $292, 022 dollars.[2] This includes back wages and overtime payments.” (Id.)

         With regard to RB, Simpson alleges that he “only paid [her] a partial wage which was well below the Federal Minimal [sic] Wage.” (Id.) Simpson states that she “worked for [RB] for 12 years” and that RB “only paid [her] $130.00 cash weekly for almost 10 years.” (Id. at PageID# 16.) Simpson claims that RB “cheated [her] out of payment of wages, ” paying her only half the amount she had earned by taking care of RB's wife. Simpson alleges that “[RB] stated Medicare would pay for $600, so he only paid [Simpson] a total of $300 monthly from 10/2016-4/2017 which include[d] the $130 [she] was given before these dates.” (Id.) Simpson seeks payment of $81, 600.00 in lost wages from RB. (Id.)

         No. 1-1, PageID# 6.) However, elsewhere in the complaint and cover sheet, Simpson states that her cause of action is based on 29 U.S.C. §§ 216(b)-(c), indicating that she brings her claims under the FLSA and the Court's federal question jurisdiction. (Doc. No. 1, PageID# 14; Doc. No. 1-1, PageID# 6.) RSB and RB are correct that there has been no showing that the parties are diverse, but that the Court has subject matter jurisdiction over Simpson's FLSA clams under 28 U.S.C. § 1331. (See Doc. No. 7, PageID# 28.)

         Simpson filed a response in opposition to the motion to dismiss that includes facts not alleged in her complaint.[3] (Doc. No. 13, PageID# 70-72.) While factual allegations made in a plaintiff's response are generally not properly considered in reviewing a motion to dismiss, the Court has more leniency in this regard when a plaintiff appears pro se. See Harding v. Davidson Cty. Sheriff's Office, No. 3:13-CV-0449, 2013 WL 5774937, at *3 (M.D. Tenn. Oct. 25, 2013). Because Simpson could move to amend her complaint to allege these additional facts, the undersigned will include them in considering the motion to dismiss. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999) (holding that the court should have “read all of [plaintiff's] filings together before dismissing [the] case”); Harding, 2013 WL 5774937, at *3; Hamby v. Gentry, No. 3:12-CV-01296, 2013 WL 3315494, at *2 (M.D. Tenn. July 1, 2013).

         In her response, Simpson states that RSB hired her in 2005 as “personal assistant by the Baskin & Company, in which RSB was the owner, ” beginning a “long-term employer/employee relationship . . . that lasted for almost 12 years.” (Doc. No. 13, PageID# 70.) RSB originally paid Simpson “the wages they agreed upon, ” but soon “halted paying [her] any wages.” (Id. at PageID# 70-71.) RSB “continued to use the business Baskin & Company to assign work to [Simpson].” (Id. at PageID# 71.) The work included “delivering checks and payments to RSB business associates, filing company paperwork, driving RSB and associates, cleaning business and properties, as well as various miscellaneous duties.” (Id.) With regard to RB, Simpson states that she provided “companionship services” to RB's wife and also performed other tasks similar to those that she was assigned by RSB. (Id. at PageID# 72.) She also states that RB “issued a Form W-2” to her. (Id.) Simpson alleges that RSB and RB “exercised control over [her] employment by hiring her, supervising her, and ultimately terminating her” and that she was “explicitly informed” that Baskin & Company “was owned by both Defendants.” (Id.) Finally, Simpson concedes that the FLSA's statute of limitations applies to her claims, but argues that, because RSB and RB willfully violated the law, the limitations period should be three years rather than two. (See Id. at PageID# 73-74 (citing 29 U.S.C. § 255(a).)

         B. RSB and RB's Motion to Dismiss

         RSB and RB now move to dismiss Simpson's complaint for failure to state a claim. (Doc. No. 6.) They argue as a threshold matter that, because Simpson failed to allege that either defendant “employed” her within the meaning of the FLSA, her claims cannot proceed. (Doc. No. 7, PageID# 30.) Specifically, RSB and RB find Simpson's failure to plead that she was an employee as opposed to an independent contractor fatal to her claims. (Id.) RB also argues that the work Simpson alleges she performed as his wife's caretaker falls under the FLSA's domestic service exemption and, further, that Simpson's complaint “contains no allegations which, if true, could establish that RB failed to pay an appropriate hourly minimum wage” or “failed to make proper overtime payments.” (Id. at PageID# 31.) Finally, RSB and RB argue that any viable claims Simpson may have pleaded are subject to the FLSA's two-year statute of limitations and that “any attempt to recover wages that were allegedly not paid prior to July 24, 2015, ” must be dismissed. (Id. at PageID# 30.)

         RSB and RB filed a reply that responds to Simpson's additional allegations.[4] (Doc. No. 14.) In it, RSB and RB argue that there is no “Baskin & Company” corporate entity and that Simpson's additional allegations still do not establish that “she worked for RSB and/or RB as an employee (as opposed to an independent contractor).” (Id. at PageID# 88.) RSB also argues for the first time that Simpson failed to allege adequately that he did not pay her the minimum wage. (See id.)

         II. Legal Standard

         In deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the Court views the plaintiff's allegations in the light most favorable to her and accepts all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim.” Fed.R.Civ.P. 8(a)(2). However, the plaintiff must allege sufficient facts to show that the claim is “plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

         “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). A plaintiff must plead more than “labels and conclusions, ” “a formulaic recitation of the elements of a cause of action, ” or “naked assertions devoid of further factual enhancement.” Id. (quoting Twombly, 550 U.S. at 555, 557). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Finally, “[a] document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         Although a time-barred claim will typically provide no entitlement to relief, a plaintiff does not have to plead that a claim is timely in order to satisfy Rule 8(a). See Fed. R. Civ. P. 8(a); Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (“[t]he statute of limitations is an affirmative defense, see Fed. R. Civ. P. 8(c), and a plaintiff generally need not plead the lack of affirmative defenses to state a valid claim). Nevertheless, when the allegations in a complaint “affirmatively show that [a] claim is time-barred, ” it is appropriate to dismiss the claim under Federal Rule of Civil Procedure 12(b)(6). Id. (citing Jones v. Bock, 549 U.S. 199, 215 (2007))..

         III. ...


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